On July 13, the Georgia Supreme Court issued an interesting decision regarding the use of expert witnesses in medical malpractice cases. Georgia law requires a person alleging malpractice present an affidavit from “an expert competent to testify” as to the medical provider’s negligent act. Without such an affidavit, the trial court must dismiss the lawsuit.

Dubois v. Brantley

In this case, the plaintiff suffered serious complications following surgery to repair a hernia. This was an outpatient procedure, but a few days after the surgery, the plaintiff returned to the hospital, showing symptoms of pancreatitis. He later slipped into a coma and required nearly a month of intensive care and several additional surgeries.

The plaintiff later sued the hospital and the doctor who performed the original hernia surgery. Specifically, the plaintiff accused the doctor of puncturing his pancreas with a sharp surgical instrument known as a trocar. To comply with Georgia law, the plaintiff included an affidavit from a practicing general surgeon who routinely uses trocars to perform abdominal procedures. The affidavit said a physician observing the “applicable standard of medical care” should not have punctured the plaintiff’s pancreas with a trocar “unless the pancreas is located unusually, anatomically speaking,” which the expert said did not appear to be the case here.

The defendants—the hospital and the doctor accused of malpractice—moved to dismiss the lawsuit on the grounds the plaintiff’s expert, while an experienced abdominal surgeon, had apparently only performed the exact type of hernia procedure at issue in this case just once in the preceding five years. The trial judge disagreed and found the expert qualified.

Normally, an appeals court defers to a trial court’s decision with respect to whether an expert is qualified. But here, the Georgia Court of Appeals reversed the trial judge, holding it was an “abuse of discretion” to admit the expert’s affidavit. The appeals court agreed with the defendants the expert was not competent to testify as to the specific hernia procedure.

The Georgia Supreme Court reinstated the trial court’s decision, however, unanimously holding the Court of Appeals misunderstood the rules governing expert testimony. Justice Keith Blackwell, writing for the Supreme Court, said the appeals court defined the requisite level of expertise too narrowly in this case. The expert here may not have performed the exact same procedure as the defendant physician, but he did regularly perform similar procedures using a trocar. Furthermore, the law does not require an expert actually perform the exact same procedure as the defendant, only that he possess “an appropriate level of knowledge” regarding the procedure. Given the expert here is only offering his opinion regarding the proper use of a trocar, not how to perform the entire hernia surgery, the trial judge was within his discretion to allow the affidavit.

It is important to emphasize the limited nature of the Supreme Court’s decision. As Justice Blackwell said in a footnote to his opinion, had the trial judge decided the expert’s testimony was inadmissible, that would not have been an abuse of discretion either. Nor is the Supreme Court opening the door for experts in future cases to offer opinions on procedures where they lack sufficient knowledge.